The Court of Appeal has today handed down judgment in the first appeal to consider the Concessions Contract Regulations: Ocean Outdoor UK Ltd v London Borough of Hammersmith & Fulham [2019] EWCA Civ 1642. The Court of Appeal dismissed Ocean’s appeal from the judgment of O’Farrell J, which had dismissed Ocean’s claim that the Concession Contracts Directive and Regulations applied to two leases of land owned by the Council either side of the Hammersmith Flyover on which are situated substantial structures which support large digital advertising screens. The Court of Appeal confirmed (1) that the leases were not “services” concessions contracts, (2) that they were not contracts “for pecuniary interest”, and (3) that in any event the land exemption applied. As to (1), the Directive and Regulations relate to services which are for the benefit of the contracting authority or its residents, in furtherance of the authority’s strategic objectives or to satisfy their statutory obligations. A lease that permitted land to be used to sell advertising to third parties was not entrusting a “service” to the tenant. As to (2), an essential requirement of a contract for pecuniary interest is that the contractor assumes a legally enforceable obligation to carry out the services. The leases did not impose any such obligation on the tenant, as it only contained a permitted user clause. As to (3), the land exemption is wide: the leases were genuine leases and agreements for the rental of land.
The judgment is available here.
James Goudie KC, Joanne Clement and Christopher Parkin acted for the successful local authority, instructed by Mari Roberts of Sharpe Pritchard LLP.
